What is primary physical custody?

Posted on Nov 23, 2020 by Katie Carter


Understanding custody isn’t easy. In fact, I often tell people that learning about custody first involves learning the vocabulary of custody, and understanding how the different forms of custody relate to each other.

Though custody litigation is common, these disputes often center around similar themes. In general, child support is not a particular contentious area of the law, since it’s rooted in a formula which is established by statute.  I often tell clients that it doesn’t matter whether opposing counsel, the judge, or I compute child support, inputting the same numbers will yield the same results.

Custody disputes do arise, though, and in most cases it’s because parents have correctly identified that more parenting time has a direct correlation to the amount of child support awarded. Simply put, the more time you have with the children, the more you’ll receive (or the less you’ll pay) in child support.

Savvy dads have known this for ages. And while moms almost always tell me they want sole legal custody, more and more dads ask for more and more parenting time all the time because of the correlation between that time and the child support.

It’s an unfortunate truth, but it’s one that we have to face, again and again.

Combined with the new rules regarding physical custody orders, it has created an environment that find more and more dads receiving shared physical custody. That’s not to say that we don’t support involved dads staying involved for the benefit of their children; it’s just an observation that the “desire” to have more parenting time is hand in hand with a desire to pay less in child support.

That’s being cynical, of course. But if I had a nickel for all the cases where a dad complained about the amount of child support the law requires him to pay, I’d have an awful lot of nickels. And the amount isn’t particularly generous, either, as anyone knowledgeable about the costs of raising kids in today’s society will tell you.

And so, the fact remains, that even though child support is often not litigated – at least, not just for its own sake – custody is, and child support is a part of that.

We’ve talked over and over about shared physical custody, but we haven’t gone into as much detail about primary physical custody and what’s involved with it. Primary physical custody is, obviously, the type of physical custody that most Virginia moms would most like to establish. Sole custody is almost not a thing, because the courts are so convinced that, at the very least, joint legal custody is important.

Joint legal custody gives both parents the rights to call the shots where major issues involved in raising the children come up, specifically non-emergency health care, religious upbringing, and education. Day to day items are decided by the parent in charge at that particular time, but courts feel that making these big decisions – public v. private school, vaccinations, education in a particular religious history – are so important that they are loathe to give all of that power to one parent without the benefit of the other.
So, best case scenario, for most people, involves primary physical custody.

As a definition, it’s easy to understand. Primary physical custody happens when the non custodial parent – the parent who has the child less – has 89 or fewer days with the child in a calendar year. Under primary physical custody, it doesn’t matter whether the non custodial parent exercises 0 days of parenting time with the child or whether he takes his full 89, the child support is unchanged. And, as far as our child support guidelines are concerned, primary physical custody maximizes the amount of child support that the custodial parent would receive.

What does primary physical custody look like?

There’s no hard and fast rules in parenting plans; they can take literally any shape or form.


But I imagine you’re asking this because you’re trying to get a sense of what 89 or fewer days looks like, so I’d point to the most typical custody and visitation arrangement we see, which is every other weekend, and two weeks in the summer.

You can arrange it however you like, though, especially if you’re able to establish custody and visitation by agreement.

Historically, courts are less likely to award a customized parenting plan, mostly because the court doesn’t have time to hear that much evidence, and the more customized the order, the more one party could plead prejudice on the part of the judge and have a basis for overturning that decision on appeal.

Who gets primary physical custody?

Primary physical custody, as you can tell, gets harder and harder to receive. Still, it’s hard to make general statements about what courts do or don’t do, or how courts feel about particular issues. Courts are varied – whether juvenile or circuit – because they’re run by different judges, with different opinions, and they’re spread across different geographical areas. Hampton Roads is particularly diverse, too, because we’re so spread out; from the southside to the peninsula, to the Isle of Wight and the Eastern Shore, well, it’s easy to see that things (and judicial philosophies) can be varied.

Under the new laws, as we’ve mentioned, judges have to consider all forms of custody equally. Does that mean shared custody is awarded more often? Maybe. It’s hard to say, again, because it’s hard to really get a consensus between different judges in different courts in different areas all throughout Hampton Roads. It also doesn’t mean that, even if shared custody is awarded, that it’ll necessarily be 50/50 or week on/week off custody. There are no guarantees.

We do see a lot of shared custody. But primary physical custody happens, too. When custody is litigated, the court applies the best interests of the child factors, so it’s a flexible construct designed to be adapted to suit the needs of the children in each particular case. Primary physical custody also happens a lot by agreement, but we also see it happen in cases where there are issues – a parent’s work schedule, for example, or issues like addiction, abuse, or a lack of ability to coparent together. That’s not an exhaustive list, of course; anything can happen.

If primary physical custody is your goal, it’s a good idea to work with an attorney to help make it happen. Keep in mind, too, that custody and visitation is often a process. You may have to petition again for a modification later, especially if the initially ordered custody and visitation order doesn’t suit the children’s best interests in the long term.

For more information or to schedule a consult with one of our attorneys, give our office a call at 757-425-5200.